Citation Nr: 0107488
Decision Date: 03/13/01 Archive Date: 03/16/01
DOCKET NO. 98-14 593 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUE
Entitlement to service connection for a back disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Thomas D. Jones, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1958 to
September 1962.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2000 rating decision of a
Regional Office (RO) of the Department of Veterans Affairs
(VA), which denied the veteran's claim for service connection
for a back disability. He responded with a November 2000
notice of disagreement, and was then afforded a November 2000
statement of the case. He perfected his appeal with the
filing of a January 2001 VA Form 9. In a February 2001
written brief presentation to the Board, the veteran's
accredited representative moved to nullify, under the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (VCAA), the Board's May 2000 decision
which finally denied the veteran's claim for service
connection for a back disability.
Also within the Board's May 2000 decision was a remand order
instructing the RO to afforded the veteran a statement of the
case on the issue of service connection for residuals of a
left foot injury; this claim had been denied by the RO in
April 1983, and the veteran had responded with a December
1984 notice of disagreement. In compliance with the Board's
order, a statement of the case on this issue was sent to the
veteran on May 24, 2000. As the veteran did not file a
substantive appeal on this issue, it is currently not within
the jurisdiction of the Board. 38 U.S.C.A. § 7105 (West
1991).
Nevertheless, within a February 2001 written brief
presentation, the veteran's representative moved for
readjudication of the claim for service connection for
residuals of a left foot injury under § 7(b) of the VCAA.
Because the denial of this claim did not become final until
60 days after the mailing of the statement of the case, § 7
of the VCAA, discussed in detail below, also applies to this
claim. The RO is invited to consider the representative's
motion for readjudication on this issue as appropriate.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7(b), 114 Stat. 2096, 2099-2100 (2000)
REMAND
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction in this remand
may be given a lower order of priority in terms of the
necessity of carrying out the instruction completely.
As is noted above in the introduction, this appeal arises
from a November 2000 notice of disagreement filed in response
to an October 2000 rating decision denying the veteran's
claim for service connection for a back disability. However,
also of record is a May 8, 2000, Board decision which denied
this same issue as not well-grounded; that Board decision is
now final. 38 U.S.C.A. § 7104 (West 1991 & Supp. 2000).
Subsequent to the May 2000 Board decision becoming final, the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (VCAA) was signed into law. Among
other things, this law eliminates the concept of a well-
grounded claim, redefines the obligations of the Department
of Veterans Affairs (VA) with respect to the duty to assist,
and supersedes the decision of the United States Court of
Appeals for Veterans Claims in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had
held that VA cannot assist in the development of a claim that
is not well grounded. This change in the law is potentially
applicable to all claims a decision on which became final
after the Court's decision
in Morton but prior to the enactment of the VCAA, and
involving a denial of the claimed benefit based on a lack of
well-groundness under 38 U.S.C.A. § 5107 (as in effect prior
to the enactment of the VCAA). In the case of such claims,
the claimant may move to have the claim readjudicated under
the law as revised, as if the prior "denial or dismissal had
not been made." Such motions for readjudication must be
filed not later than two years after the enactment of the
VCAA. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, § 7(b), 114 Stat. 2096, 2099-2100 (2000).
In the present case, the veteran's representative has filed a
February 2001 motion for readjudication of the veteran's
claim. As the original claim for service connection for a
back disability was finally denied subsequent to the Morton
decision but prior to the enactment of the VCAA and was found
to be not well-grounded, and the motion for readjudication
was made less than two years after the VCAA's enactment,
readjudication is required.
The VA's Office of General Counsel has issued a binding legal
opinion regarding the handling of such motions. 38 U.S.C.A.
§ 7104(c) (West 1991); VAOPGCPREC 3-2001 (January 22, 2001).
The General Counsel's opinion states that "[g]enerally, the
agency of original jurisdiction (AOJ) should first
readjudicate a claim under section 7(b) of the VCAA."
Additionally, the claim which is to be readjudicated is the
claim which was previously and finally denied; because the
past final decision is vitiated, the original claim become a
pending claim. Of course, proper development under the VCAA
is required prior to readjudication of the claim.
Thereafter, if the readjudicated claim is again denied, the
claimant "must start the appeal process anew," according to
the General Counsel.
Accordingly, this case is REMANDED for the following:
The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letters 00-87
(November 17, 2000), 00-92 (December 13,
2000), and 01-02 (January 9, 2001), as
well as any pertinent formal or informal
guidance that is subsequently provided by
VA, including, among other things, final
regulations and General Counsel precedent
opinions. Any binding and pertinent court
decisions that are subsequently issued
also should be considered. After all
appropriate development is accomplished,
the RO should readjudicate the veteran's
claim for service connection for a back
disability as if no prior decisions had
been rendered on the issue, and he and his
representative should be so notified of
the result.
Thereafter, the case should be returned to the Board, but
only if properly perfected for appeal. The Board intimates
no opinion as to the ultimate outcome of this case. The
appellant need take no action unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV,
directs the ROs to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
G. H. Shufelt
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).